1.1.A.16 Accommodation bond transitional provisions
Note: These provisions applied to new claims lodged between 1 July 2005 and 30 June 2006.
Overview
This topic explains how the accommodation bond transitional provisions are applied and covers:
- accommodation bond transitional provisions
- why backdating is allowed
- periods during which the accommodation bond transitional provisions can apply
- when to apply the accommodation bond special circumstances transitional provisions
- what constitutes special circumstances
- factors considered when determining if special circumstances exist during the accommodation bond transitional period, and
- when the accommodation bond special circumstances transitional provisions should NEVER be applied.
Accommodation bond transitional provisions
People who are qualified and have a social security payment payable as a result of the 1 July 2005 exemption of their accommodation bond from the assets test may have their claim backdated to the later of:
- 1 July 2005, and
- the day on which the social security payment first becomes payable.
Why backdating is allowed
This is a beneficial change and the intention is wherever possible, eligible aged care residents should benefit from the changes. The provision to allow backdating of late claims is to assist residents who, for reasons beyond their control, delay lodging a claim for pension during the transitional period.
Periods during which the accommodation bond transitional provisions can apply
The accommodation bond transitional provisions can be applied to all new claims lodged between:
- 1 July 2005 and 30 September 2005 (inclusive), or
- 1 October 2005 and 30 June 2006 (inclusive) if special circumstances exist.
When to apply the accommodation bond special circumstances transitional provisions
The accommodation bond special circumstances transitional provisions apply to claims lodged between 1 October 2005 and 30 June 2006. If, after 1 July 2005, a social security payment becomes payable, as a result of the exemption of the accommodation bond, then a claim for payment, lodged between 1 October 2005 and 30 June 2006, should be examined to determine if special circumstances exist.
What constitutes special circumstances
There is no definitive description of what constitutes special circumstances. However, there have been a number of AAT and Federal Court decisions that offer a guide in determining whether special circumstances exist.
Examples:
- In SDSS v Hulls (1991) 13 AAR 414, the Federal Court held that it is not possible to set out a complete list of the relevant factors to be taken into account in determining whether special circumstances exist. Each case must be considered on its own merits.
- In Beadle and D-GSS (1984) 1AAR 362 the AAT held that, in order for 'special circumstances' to exist, it must be possible to say that the circumstances in the case in question are 'markedly different from the usual run of cases'. The circumstances must have 'a particular quality of unusualness that permits them to be described as special'.
Factors considered when determining if special circumstances exist during the accommodation bond transitional period
The discretionary nature of the special circumstances provisions makes it impossible to give a precise list of factors that should be taken into account when considering whether the provisions should be applied. There is usually not 1 factor which makes a situation unusual, unforeseen or exceptional, but a combination of factors applying to each individual. The decision to apply the special circumstances provisions should be based on an holistic view of an individual's circumstances.
In general terms the decision maker should determine if there are any circumstances that exist for the person or their nominee that would warrant the application of the special circumstances provisions during the transitional periods.
The following table lists some factors that should be taken into consideration when determining if accommodation bond special circumstances transitional provisions exist.
| Factors to consider | What to look for |
|---|---|
| Health |
Changes in health could have a major bearing on the individual's circumstances. Examples:
|
| Emotional state | Has stress or some other personal circumstance influenced the person's emotional state to the point that it has become a significant factor in their behaviour, decision making capacity or on their health? |
| Changed circumstances | Have the circumstances of the person altered significantly due to circumstances wholly or partly outside of the person's control? |
| Carers and nominees | Changes in a carer's or a nominee's circumstances may impact on their capacity to act on behalf of the resident. Has the carer or the nominee had any exceptional or unusual circumstances that may have a bearing on whether special circumstances should be applied on behalf of the resident in the accommodation bond transitional period? |
| Education |
Have poor education or limited life skills affected the person's capacity to make a rational decision? Note: A bad decision in any particular circumstance is not necessarily an irrational decision. |
| Location | Has the person's location contributed to any delays in lodging a claim? |
| Incorrect or insufficient advice | Generally, if a person has been incorrectly advised by a third party or their representative then they should seek a remedy through other channels, e.g. the courts. However, the person may not be, or ever likely to be, in a position to take this action. |
| Other details | If there is some doubt as whether special circumstances exist then the person should be given the benefit of the doubt. |
When the accommodation bond special circumstances transitional provisions should NEVER be applied
The accommodation bond special circumstances transitional provisions should never be applied to claims:
- made outside the transitional periods, and
- where the social security payment did not become payable, as a result of the exemption of the accommodation bond.